United States v. Wade, Shelton

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2001 Decided July 3, 2001

No. 00-3058

United States of America,
Appellee

v.

Shelton Wade, et al.,
Appellants

Appeal from the United States District Court
for the District of Columbia
(No. 96cr00472)

Andrew P. McGuire argued the cause for the appellants.

John R. Fisher, Assistant United States Attorney, argued
the cause for the appellee. Wilma A. Lewis, United States
Attorney at the time the brief was filed, and Elana Tyran-
giel, Assistant United States Attorney, were on brief for the
appellee. Mary-Patrice Brown, Assistant United States At-
torney, entered an appearance.

 Before: Sentelle and Henderson, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Sheila Gant,
Shelton Wade, Angel Wade, Jean Wade and Dorothy Wade
appeal the district court order denying their petition for
attorney's fees under either the Equal Access to Justice Act,
28 U.S.C.A. s 2412(d) (EAJA), or the Hyde Amendment to
the Departments of Commerce, Justice and State, the Judi-
ciary and Related Agencies Appropriations Act of 1998, Pub.
L. No. 105-119, s 617, 111 Stat. 2440, 2519 (1997), 18
U.S.C.A. s 3006A, historical and statutory notes (Hyde
Amendment). We conclude that the EAJA does not apply to
the appellants who are intervenors in a criminal abatement
proceeding and that the appellants have failed to demonstrate
an entitlement to fees under the Hyde Amendment. Accord-
ingly, we affirm the district court.

I.

On May 28, 1997 Charles Wade and his brother Eugene
Wade pleaded guilty to a three-count information alleging,
inter alia, the maintenance of a disorderly house in the
District of Columbia in violation of D.C. Code s 22-2722. See
United States v. Wade, 152 F.3d 969, 970 (D.C. Cir. 1998)
(recounting facts giving rise to this case). According to the
government, the Wades sold drugs from and near a residence
at 647 G Street, S.E., in the District. Although Charles and
Eugene did not reside at that address, their parents and
various other family members lived there at the time. Based
on the pleas, the district court entered an order of abatement
against 647 G Street. See D.C. Code s 22-2717 (requiring
abatement of nuisance in certain circumstances). The order
directed the United States Marshal to close the house for one
year.

The appellants, who either resided at or had an interest in
647 G Street, intervened seeking reconsideration of the order.
The court permitted the appellants to intervene but refused
to reconsider its decision, holding that an order of abatement
is a mandatory sanction upon conviction of keeping a disor-

derly house under section 2722. See United States v. Wade,
992 F. Supp. 6, 10-11, 13 (D.D.C. 1997).

Charles and Eugene, joined by the appellants, appealed to
this court. We vacated the abatement order reasoning that,
"if confronted with this question, the D.C. Court of Appeals
would hold that conviction for keeping a disorderly house
under section 2722 will require an abatement order pursuant
to section 2717 only if that house was used, at least in part"
for "the purpose of lewdness, assignation, or prostitution."
Wade, 152 F.3d at 972-73. The government failed to estab-
lish in the district court that the house was used for such
purposes. See id.

Subsequently, the appellants petitioned this court for the
payment of attorney's fees and litigation costs under the
EAJA. We denied the petition "without prejudice to renewal
of the matter before the district court." United States v.
Wade, No. 97-3170 (consolidated with Nos. 97-3135, 97-3140,
97-3141, 97-3171) (D.C. Cir. Nov. 4, 1998). The appellants
then filed a fee petition with the district court but their
request was denied. See United States v. Wade, 93 F. Supp.
2d 19 (D.D.C. 2000). This appeal followed.

II.

We are asked to decide whether the appellants--interve-
nors in a criminal proceeding who successfully challenged an
abatement order entered as part of a criminal sentence--may
recover from the United States attorney's fees arising from
their challenge of the abatement order. To reach a decision,
we must consider three questions: (1) whether we have
jurisdiction to hear this appeal, (2) whether the appellants'
claim here is subject to the EAJA or the Hyde Amendment
and (3) whether the district court correctly applied the appro-
priate legal framework. Because resolution of the jurisdic-
tional dispute depends on the disposition of the statutory
issue,1 we consider first the statutory question. We then turn
to jurisdiction and finally address the merits.

__________
1 If the appellants' fee petition is governed by the EAJA, the
proceeding to recover the fee is a civil action and appeal from an

 A. Applicability of the EAJA and the Hyde Amendment

In the United States, under what is known as the "Ameri-
can Rule," each party to a lawsuit usually bears its own
attorney's fees "unless there is express statutory authoriza-
tion to the contrary." Hensley v. Eckerhart, 461 U.S. 424,
429 (1983) (citing Alyeska Pipeline Serv. Co. v. Wilderness
Society, 421 U.S. 240 (1975)). See generally In re Turner, 14
F.3d 637, 640 (D.C. Cir. 1994) (per curiam) (discussing attor-
ney's fees and sovereign immunity). Even if a fee award is
otherwise authorized, sovereign immunity protects the United
States from attorney's fees liability "except to the extent it
has waived its immunity." Ruckelshaus v. Sierra Club, 463
U.S. 680, 685 (1983) (citing Alyeska Pipeline, 421 U.S. at 267-
268 & n.42). Any waiver of immunity, however, "must be
'construed strictly in favor of the sovereign,' " Sierra Club,
463 U.S. at 685 (quoting McMahon v. United States, 342 U.S.
25, 27 (1951)), and the court "may not find a waiver unless
Congress' intent is ' "unequivocally expressed" ' in the rele-
vant statute." Hubbard v. EPA, 982 F.2d 531, 532 (D.C. Cir.
1992) (quoting United States v. Mitchell, 445 U.S. 535, 538
(1980) (quoting United States v. King, 395 U.S. 1, 4 (1969))).

Of relevance here, the Congress has elected to waive
sovereign immunity for attorney's fees in two circumstances:
under the EAJA and under the Hyde Amendment. The two
statutes respectively provide:

Except as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the
United States fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred by
that party in any civil action (other than cases sounding
in tort), including proceedings for judicial review of agen-
cy action, brought by or against the United States in any

__________
order denying the fee must be taken within 60 days from entry of
the order. See infra at 7-8. Alternatively, if the fee petition is
governed by the Hyde Amendment, we must decide whether a
proceeding instituted to recover the fee is civil or criminal and
whether Rule 4(a) or Rule 4(b) of the Federal Rules of Appellate
Procedure applies to it.

 court having jurisdiction of that action, unless the court
finds that the position of the United States was substan-
tially justified or that special circumstances make an
award unjust.

EAJA, 28 U.S.C.A. s 2412(d)(1)(A) (emphasis added).

During fiscal year 1998 and in any fiscal year thereafter,
the court, in any criminal case (other than a case in
which the defendant is represented by assigned counsel
paid for by the public) pending on or after the date of the
enactment of this Act [Nov. 26, 1997], may award to a
prevailing party, other than the United States, a reason-
able attorney's fee and other litigation expenses, where
the court finds that the position of the United States was
vexatious, frivolous, or in bad faith, unless the court finds
that special circumstances make such an award unjust.

Hyde Amendment, 18 U.S.C.A. s 3006A, historical and statu-
tory notes.

The appellants contend the district court erred in conclud-
ing their fee petition is governed by the Hyde Amendment
rather than the EAJA. We are not persuaded. The EAJA
by its terms authorizes the award of attorney's fees to a
prevailing party "in any civil action." The statute does not
define a "civil action" but, however else that phrase may be
defined, "one definition that is always correct is that civil
actions are those that are not criminal." United States v.
Soueiti, 154 F.3d 1018, 1019 (9th Cir. 1998) (citing Black's
Law Dictionary 245 (6th ed. 1990); Ballentine's Law Dictio-
nary 202 (3d ed. 1969)). Here, the action against Charles and
Eugene Wade was plainly criminal. The proceeding was
instituted in order to "punish an infraction of the criminal
laws." See Black's Law Dictionary 372 (6th ed. 1990). They
were charged with a crime, brought to court, found guilty
based on their pleas and sentenced. See Black's Law Dictio-
nary 372 (defining criminal action as "[p]roceeding by which
person charged with a crime is brought to trial and either
found not guilty or guilty and sentenced"). The appellants
intervened in the proceeding before the district court to
challenge part of Charles's and Eugene's sentence. Their
intervention did not change the nature of that proceeding. It

was and remained criminal. Because the appellants were
party to a criminal action and because the EAJA applies only
to civil actions, they cannot recover under the EAJA. Rath-
er, their fee petition is governed by the Hyde Amendment.

The appellants point to cases that treat criminal forfeiture
proceedings as civil actions under EAJA. See Brief of Appel-
lants at 10-11 (citing cases). They contend a similar conclu-
sion is warranted with regard to an abatement order. We do
not agree. A third party asserting an interest in a forfeiture
proceeding is "expressly barred by 21 U.S.C. s 853(k)(2) from
'commenc[ing] an action at law or equity against the United
States concerning the validity of [its] alleged interest in the
property.' " United States v. Douglas, 55 F.3d 584, 586 (11th
Cir. 1995) (quoting 21 U.S.C. s 853(k)(2)); accord United
States v. Gilbert, 244 F.3d 888, 907 (11th Cir. 2001). A third
party's only avenue for protecting his interest is the proce-
dure set forth in 18 U.S.C. s 853(n), which provides that
"[a]ny person, other than the defendant, asserting a legal
interest in property which has been ordered forfeited to the
United States pursuant to this section" may "petition the
court for a hearing to adjudicate the validity of his alleged
interest in the property." In establishing this statutory
system, "Congress intended that third-party petitions ancil-
lary to a criminal forfeiture take the place of civil cases, and
that such a procedure would enable innocent parties to adju-
dicate their property interests swiftly instead of having to file
separate civil suits." Gilbert, 244 F.3d at 907 (describing
conclusion of Douglas court); see also H.R. Rep. No. 98-1030,
at 206-07 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3389-
90 ("[O]nce the indictment or information is filed, a third
party is not to commence a civil suit against the United
States; instead the third party should avail himself of the
ancillary hearing procedure.... This provision assures a
more orderly disposition of both the criminal case and third
party claims. Indeed, it is anticipated that the new hearing
procedure should provide for more expedited consideration of
third party claims than would the filing of separate civil
suits."). It is for these reasons that courts have treated a
third-party proceeding ancillary to a criminal forfeiture pros-
ecution as a civil action under the EAJA. But these reasons

do not apply to the appellants' intervention. The appellants
were not prohibited by statute or otherwise from bringing a
civil action against the government in order to protect their
interest in the property subject to the abatement order. Had
they done so, they would have been eligible to recover their
attorney's fees under the EAJA. But that is not what they
did. They chose instead to intervene in a criminal action.
And their choice forecloses their fee request under EAJA.

B. The Timeliness of the Appeal

Having determined the appellants' petition for fees is gov-
erned by the Hyde Amendment, we turn next to the question
of jurisdiction. The district court's order denying the appel-
lants' petition was issued on March 24, 2000. It was not
entered on the district court docket until April 12, 2000, see
Appendix 14, and the appellants assert they did not receive
notice of the decision until May 23, 2000. See Brief of
Appellants at 5. On that same day, or 41 days after the entry
of the order, the appellants filed their notice of appeal.

The government maintains that, because the appellants
failed to file their notice of appeal within 10 days after the
entry of the order, as required by Rule 4(b) of the Federal
Rules of Appellate Procedure,2 the appeal is untimely and we
are without jurisdiction to consider it. See United States v.
Feuver, 236 F.3d 725, 727 (D.C. Cir. 2001) ("It is well settled
that the time limits set out in [Rule 4] are 'mandatory and
jurisdictional.' " (quoting Browder v. Director, Dep't of Cor-
__________
2 Rule 4(b) provides:

(A) In a criminal case, a defendant's notice of appeal must be
filed in the district court within 10 days after the later of:

(i) the entry of either the judgment or the order being
appealed; or

(ii) the filing of the government's notice of appeal.

Fed. R. App. P. 4(b)(1)(A).

rections, 434 U.S. 257, 264 (1978))). The appellants counter
that Rule 4(b) is not applicable here and that the appeal is
timely under the 60-day limit set forth in Rule 4(a).3

Rule 4(a) provides that, in a civil case, the notice of appeal
must be filed within 30 days after the order appealed from is
entered. See Fed. R. App. P. 4(a)(1)(A). The time period is
extended to 60 days when the United States is a party. See
id. 4(a)(1)(B). Rule 4(b), on the other hand, requires that a
defendant's notice of appeal in a criminal case be filed within
10 days of the entry of the order being appealed. See id.
4(b)(1)(A). In order to resolve this case, we must determine
whether a petition for attorney's fees filed by a successful
intervenor in a criminal abatement proceeding is a "civil case"
or a "criminal case" under the Federal Rules of Appellate
Procedure. The language of the Hyde Amendment is silent
on this point but we find two decisions, one from the Fourth
Circuit and one from Fifth Circuit, instructive on this issue.

In United States v. Truesdale, 211 F.3d 898, 902-04 (5th
Cir. 2000), the Fifth Circuit held that Rule 4(a) rather than
Rule 4(b) governs an appeal made by a criminal defendant in
a Hyde Amendment proceeding. The court gave two grounds
for its holding. First, it noted that a petition under the Hyde
Amendment is the equivalent of a petition under the EAJA
designed to redress the government's violation of certain
notions of fair play in litigation. The court saw no reason
why the time for filing a notice of appeal in actions addressing
the same problem should vary based on the nature of the
underlying action.4 Second, the court expressed concern that
__________
3 Rule 4(a)(1) provides:

(A) In a civil case, except as provided in Rules 4(a)(1)(B),
4(a)(4), and 4(c), the notice of appeal required by Rule 3 must
be filed with the district clerk within 30 days after the judg-
ment or order appealed from is entered.

(B) When the United States or its officer or agency is a party,
the notice of appeal may be filed by any party within 60 days
after the judgment or order appealed from is entered.

Fed. R. App. P. 4(a)(1).
4 The court also observed that generally Hyde Amendment pro-
ceedings are governed by the same procedures as EAJA proceed-

adopting the position advocated by the government--that a
Hyde Amendment proceeding is a criminal proceeding--
would mean the government itself would be unable to appeal
a district court order granting Hyde Amendment fees be-
cause the government may not pursue an appeal in a criminal
case unless authorized by statute. The court could find no
statute permitting the government to appeal in a Hyde
Amendment proceeding and, therefore, thought it best to
apply Rule 4(a) to a Hyde Amendment appeal in order to give
both parties an opportunity to obtain appellate review.

The issue of the timeliness of appeal in a Hyde Amendment
proceeding was before the Fourth Circuit in In re 1997
Grand Jury, 215 F.3d 430, 433-36 (4th Cir. 2000). Conclud-
ing that such a proceeding is a civil action, the court held that
a notice of appeal must comply with Rule 4(a) rather than
Rule 4(b). The court analogized the fee petition to a Rule
41(e) action to recover property, pointing out that "the action
is simply a means to determine a claimant's rights arising
from criminal proceedings" and "not a part of the trial and
punishment process that is criminal law." See id. at 435
(citations and internal quotation marks omitted). The court
also found it "notable that the burden of proof in a Hyde
Amendment action is on the claimant, rather than the Gov-
ernment" and commented that as a general rule the burden is
on the claimant only in civil cases. Id. at 436 n.7 (citations
omitted).

We agree with the Fourth and Fifth Circuit decisions5 and
conclude that the appeal of an intervenor's fee petition under
the Hyde Amendment is subject to the time limitations set
out in Rule 4(a). Accordingly, the appellants' notice of appeal
was timely and we have jurisdiction to hear the appeal.

__________
ings (except for the burden of proof) and, because the timeliness of
a notice of appeal for EAJA proceedings is governed by Rule 4(a),
the rule for Hyde Amendment proceedings should be the same.

5 The Tenth Circuit's contrary decision on this point lacks any
persuasive power as the decision provides little analysis. See
United States v. Robbins, 179 F.3d 1268, 1270 (10th Cir. 1999).

 C. The Merits

Now that we finally come to the merits of the appellants'
case, we find there is nothing left to decide. Whether
because of their belief that the fee petition was governed by
the EAJA or their realization that, under these facts, they
could not carry the Hyde Amendment's heavy burden,6 the
appellants directed all their arguments to showing that before
the district court the government failed to carry its burden of
proving that its position was substantially justified. The
appellants, however, failed to argue that the district court
abused its discretion in denying their petition under the Hyde
Amendment. Their omission is not lost on the government
which argues that any allegations of error on this issue are
abandoned. We agree and therefore leave undisturbed the
district court's decision on this issue. See Feuver, 236 F.3d at
727 n.3 (issues not briefed are abandoned) (citing Terry v.
Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996), cert. denied, 520
U.S. 1264 (1997)).7

__________
6 Unlike an EAJA action where the burden is on the government
to establish that its position was substantially justified, see Air
Transp. Ass'n of Canada v. FAA, 156 F.3d 1329, 1332 (D.C. Cir.
1998) (citing Cinciarelli v. Reagan, 729 F.2d 801, 806 (D.C. Cir.
1984)), in a Hyde Amendment proceeding the burden of persuasion
rests with the claimant who must convince the court that the
government's position was "vexatious, frivolous, or in bad faith." 18
U.S.C.A. s 3006A, historical and statutory notes; see id. (Hyde
Amendment awards "shall be granted pursuant to the procedures
and limitations (but not the burden of proof) provided for an award
under [EAJA]."); see also, e.g., United States v. True, 250 F.3d 410,
419 (6th Cir. 2001) ("[T]he Hyde Amendment explicitly does not
adopt the EAJA burden of proof. Instead, it requires the applicant
to prove that the government's position was 'vexatious, frivolous, or
in bad faith.' " (citations omitted)); United States v. Lindberg, 220
F.3d 1120, 1124 (9th Cir. 2000) (same); In re 1997 Grand Jury, 215
F.3d at 436 (same); Truesdale, 211 F.3d at 908-09 (same); United
States v. Gilbert, 198 F.3d 1293, 1302 (11th Cir. 1999) (same).

7 Because of our disposition, we need not decide whether the
district court was correct in concluding the appellants were not
"prevailing parties" under the Hyde Amendment. In light of our

 Accordingly, the district court's denial of the appellants'
petition for attorney's fees is

Affirmed.

__________
disposition, the appellants' motion for attorney's fees for prosecut-
ing this appeal is denied.